Ben­nett, Shaked kick off ‘coun­ter­rev­o­lu­tion’ against High Court

Ed­u­ca­tion Min­is­ter Naf­tali Ben­nett and Jus­tice Min­is­ter Ayelet Shaked ini­ti­ated on Thurs­day a “counter-rev­o­lu­tion” to push back against re­cent de­ci­sions by the High Court of Jus­tice.

The pro­posed as­sault on the court and its 1990s’ “con­sti­tu­tional rev­o­lu­tion” by two of Bayit Ye­hudi’s top lead­ers, which they said would re­store the proper sep­a­ra­tion of pow­ers, has two main prongs.

First, they pro­pose a Ba­sic Law re­defin­ing the pa­ram­e­ters of the bal­ance be­tween Is­rael’s demo­cratic and Jewish prin­ci­ples to lean more in fa­vor of Jewish prin­ci­ples.

Shaked has spo­ken about such a move on nu­mer­ous oc­ca­sions, ex­plain­ing, for ex­am­ple, that it would au­tho­rize the court to take into ac­count the state’s Jewish char­ac­ter as a pri­mary prin­ci­ple in de­cid­ing is­sues re­lated to African mi­grants. Un­til now, the ques­tion of Is­rael’s Jewish char­ac­ter has been raised be­fore the High Court, but rel­e­gated to a side is­sue.

Se­cond, a new Ba­sic Law re­gard­ing leg­is­la­tion would both cre­ate a mech­a­nism for the Knes­set to over­ride the High Court if the court strikes down a law, as well as set­ting out spe­cial pro­ce­dures for laws that the court would not have the power to strike.

Re­cently, the court has come un­der heavy fire after it struck down Knes­set laws and cab­i­net de­ci­sions re­lat­ing to mi­grants, ex­empt­ing haredim from IDF ser­vice, pro­tect­ing the res­i­dency of east Jerusalemites who had a po­lit­i­cal af­fil­i­a­tion with Hamas, and the le­gal­ity of re­plac­ing the an­nual state bud­get with a two-year bud­get.

Iron­i­cally, the press re­lease quoted for­mer Supreme Court pres­i­dent Aharon Barak where he wrote about the im­por­tance of Ba­sic Laws and that no branch of gov­ern­ment can have un­lim­ited power.

Whereas Barak usu­ally di­rected th­ese prin­ci­ples against the Knes­set, Ben­nett and Shaked were us­ing his quote to show that the ju­di­ciary also needs lim­its.

The joint press re­lease by the two cab­i­net min­is­ters em­pha­sized that pass­ing laws that courts can­not strike down is a rec­og­nized prac­tice world­wide.

They did not men­tion that in coun­tries like the US, where the leg­isla­tive branch can over­ride the Supreme Court, there is also usu­ally a con­sti­tu­tion – which Is­rael does not have – that acts as a per­ma­nent limit on the leg­isla­tive and ex­ec­u­tive branches from over­reach.

In Is­rael, only the High Court can func­tion to pre­vent such al­leged over­reach.

Ben­nett said, “In the re­cent pe­riod, the High Court dis­qual­i­fied Knes­set laws and gov­ern­ment de­ci­sions such as the leg­isla­tive pack­age for re­mov­ing in­fil­tra­tors, the bud­get law and the nega­tion of res­i­dency of Hamas fol­low­ers.

“This new sit­u­a­tion in which dis­qual­i­fy­ing laws changed into a rou­tine ac­tion has com­pelled us, the leg­is­la­tors elected by the pub­lic, to act to re­store the proper bal­ance be­tween the gov­ern­men­tal branches – and this we are do­ing to­day,” said Ben­nett.

Shaked said, “The Ba­sic Law for leg­is­la­tion will clearly de­fine the lim­its of ju­di­cial re­view, the leg­isla­tive process, the leg­is­la­tion of Ba­sic Laws and the di­a­logue be­tween the courts and the Knes­set. The law needs to be for­mu­lated with the broad­est pos­si­ble pub­lic con­sen­sus.”

Zion­ist Union MK Itzik Sh­muly ac­cused the pair of “trolling the courts.” “Only in a dark dic­ta­tor­ship is the Supreme Court sub­ju­gated to po­lit­i­cal gim­micks,” he said.

Joint Arab List MK Ah­mad Tibi said that “the pro­posal is dan­ger­ous to democ­racy and the rule of law,” and ac­cused the gov­ern­ment of tram­pling ba­sic rights. It would re­move what is left of democ­racy in Is­rael, he said.

Ben­nett and Shaked’s push is far from the first time that var­i­ous par­ties in the Knes­set have en­ter­tained lim­it­ing or re­duc­ing the High Court’s pow­ers.

In the past, the Knes­set was close to var­i­ous com­pro­mises that would have al­lowed over­rul­ing the court or putting a law be­yond ju­di­cial re­view if be­tween 65 and 75 Knes­set mem­bers passed the par­tic­u­lar law.

The ra­tio­nale was that at a cer­tain point, those num­bers would re­quire sup­port from op­po­si­tion MKs, and that if the gov­ern­ment and the op­po­si­tion agreed on some­thing, that the court should not interfere.

None of th­ese ini­tia­tives ever made it across the leg­isla­tive fin­ish line, as there were al­ways some parts of the gov­ern­ing coali­tion that op­posed the bill or of­fi­cials such as for­mer Knes­set speaker Reu­ven Rivlin who op­posed the pro­posal with­out a deal with the High Court it­self.

Most of the par­ties in the cur­rent coali­tion are on record in fa­vor of a law lim­it­ing the High Court’s pow­ers, though it is un­clear what Prime Min­is­ter Ben­jamin Ne­tanyahu’s and the Ku­lanu party’s fi­nal po­si­tions would be. Ku­lanu has been a pri­mary de­fender of the High Court, but it is un­clear if it will con­tinue to de­fend the court after the re­cent del­uge of rul­ings, in­clud­ing nix­ing fu­ture two-year bud­gets, an prac­tice Ku­lanu party chair­man (and Fi­nance Min­is­ter) Moshe Kahlon sup­ports.

For­mer Peace Now sec­re­tary-gen­eral Yariv Op­pen­heimer said Ben­nett and Shaked had “de­clared war on the Supreme Court and at­tempted to make the court tooth­less.”

Op­pen­heimer called upon Kahlon to stop Bayit Ye­hudi from harm­ing the court.

Barak him­self has said he does not op­pose laws lim­it­ing the ju­di­ciary’s pow­ers, pro­vided that they are only passed as part of a con­sti­tu­tion that would place lim­its on the ex­ec­u­tive and leg­isla­tive branches in place of the High Court be­ing the only emer­gency break.

The for­mer Supreme Court pres­i­dent is cred­ited or crit­i­cized for lead­ing a ju­di­cial or “con­sti­tu­tional” rev­o­lu­tion in the 1990s, by us­ing the Ba­sic Laws in place at the time to broaden the court’s abil­ity to strike down Knes­set laws as un­con­sti­tu­tional.

Since that time, the na­tional de­bate over ju­di­cial ac­tivism has swung wildly in both di­rec­tions, de­pend­ing on what is­sues were be­fore the court and what coali­tion was in power.

The two Bayit Ye­hudi min­is­ters said that mov­ing their plan for­ward would be their cen­tral goal in the up­com­ing Knes­set leg­isla­tive ses­sion. •